WASHINGTON — An aggressive push to enshrine same-sex civil marriage into federal law has arisen in response to Justice Clarence Thomas’ remarks to revisit the Obergefell v. Hodges decision in his concurrence in the June 24 decision that overturned Roe v. Wade. 

Thomas wrote that the justices should “reconsider all of this Court’s substantive due process precedents,” including Obergefell, and “’follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.’ Substantive due process conflicts with that textual command and has harmed our country in many ways.”  

He added that “after overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” 

While Justice Samuel Alito emphasized in the majority opinion for the Dobbs v. Jackson Women’s Health decision that it “concerns the constitutional right to abortion and no other right,” Democrats have seized the moment to not only push an expansion of the redefinition of marriage, but paint Republicans who support traditional marriage as out of touch and bigoted ahead of the midterm elections. 

The “Respect for Marriage” bill, which July 19 passed the House, requires that states cannot deny “full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals.”  

It also establishes for “any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into.” 

 

Religious Freedom, Polygamy Concerns 

While the bill’s sponsors in the Senate claim it would “repeal the discriminatory Defense of Marriage Act (DOMA), enshrine marriage equality in federal law and provide additional legal protections for marriage equality,” opponents of the legislation argue that it expands the definition of marriage beyond the Obergefell ruling in troubling ways and could result in more discrimination against Americans with a traditional understanding of marriage. 

Eighty-three groups, led by the religious-liberty law firm Alliance Defending Freedom, wrote to Senate Minority Leader Mitch McConnell, R-Ky., July 27 highlighting their concerns with the legislation. 

They wrote that the measure “would require federal recognition of any one state’s definition of marriage without any parameters whatsoever. This would include plural marriages, time-bound marriages, open marriages, marriages involving a minor or relative, platonic marriages, or any other new marriage definition that a state chooses to adopt, including through undemocratic imposition by a state Supreme Court.” 

They added that the bill applies to those acting “under color of state law,” which could include religious foster-care providers and social-service organizations. This effectively “deputizes activist groups to sue religious individuals, organizations, and businesses that operate according to their sincerely held religious belief that marriage is between one man and one woman,” since “the U.S. Supreme Court has recognized this as a term that might apply where a private organization participates in a joint activity with a state, is performing a function traditionally performed by the government, or even when its operations are entwined with government policies.”  

The groups warned that “the Internal Revenue Service could rely on this congressional declaration requiring full recognition of same-sex marriage to strip 501(c)(3) organizations of their tax-exempt status if they continue to adhere to their belief that marriage is only between one man and one woman.” 

 

‘Assault on Religious Freedom’ 

Roger Severino, vice president of domestic policy at the Heritage Foundation, which signed on to the letter, told the Register that the bill was “an assault on religious freedom of people who deserve to be treated with respect and affirm the same beliefs that Hillary Clinton, Barack Obama and President Joe Biden had just a few years ago with respect to the purpose and meaning of marriage.” 

Severino, who served as the director of the Office of Civil Rights at the Department of Health and Human Services from 2017 to 2021, said the bill “will do nothing on the ground with respect to same-sex marriage benefits and privileges, so they’re attacking a problem that doesn’t exist in order to take a swipe at people of faith,” thereby threatening their tax-exempt status, licensing and access to grants and contracts. 

He said that the section requiring “the federal government to recognize any union that a state adopts as a marriage for all federal purposes,” with no limit on the number of people in such unions, brings up concerns about “plural marriages.” Such concerns are not “purely theoretical,” he added, pointing out that in Cambridge and Somerville, Massachusetts, plural marriages are already recognized for domestic-partnership purposes. “All it takes is one state Supreme Court to say, under the logic of Obergefell, there’s no reason to say three people who love each other should not be recognized as a marriage.”  

The U.S. Conference of Catholic Bishops, per Church teaching, has also been very vocal in its opposition to the measure. The U.S. bishops call on the faithful to ask their senators to oppose the bill, saying it “would prevent states from restoring the authentic understanding of marriage between man and woman if given the opportunity by the Supreme Court. Moreover, it could even require the federal government to honor polygamous ‘marriages’ in states that move to allow it.” 

Robert Vega, an attorney and policy adviser for the USCCB’s Committee on Laity, Marriage, Family Life, and Youth, told the Register that the bill “codifies what already exists, which is the concept of same-sex civil marriage as a result of the Supreme Court’s Obergefell decision in 2015, but it does so in a way that opens up some new problems and fails to resolve some other problems.”  

He said that the bill “fails to address the religious-liberty conflicts that have arisen since the nationwide redefinition of marriage,” including “attacks on foster care and adoption agencies and wedding vendors.” The measure not only “makes no attempt to address that, but has provisions that could be used to make life more difficult for faith-based foster care and adoption agencies.”  

Vega added that this bill seems unnecessary, as it “has been put forward as a response to the Dobbs decision even though the majority of the court in the Dobbs decision explicitly said that Obergefell was not affected by that ruling.”  

 

Public Opinion 

Since the Supreme Court’s decision in Obergefell, public support for same-sex civil marriage has risen from 60% in 2015 to 71%, according to Gallup, with last year’s poll finding that more than half of Republicans backed same-sex marriage. The polling group noted this year that weekly church attendees are “holdouts” on the issue, with 40% in support of same-sex marriage, close to the 37% of weekly church attendees in support in 2015.  

Regarding the changing public opinion, Vega quoted the words of Pope Francis in his apostolic exhortation Amoris Laetitia (The Gospel of Love), that “as Christians, we can hardly stop advocating marriage simply to avoid countering contemporary sensibilities, or out of a desire to be fashionable or a sense of helplessness in the face of human and moral failings. We would be depriving the world of values that we can and must offer.” 

“In all of this, we very much want to ensure that people who experience same-sex attraction or same-sex relationships are loved,” Vega added. “That is distinct from still upholding the definition of marriage that has always been known and understood as the foundation of the family and the basic building block of society.”  

 

Republican Support  

Forty-seven House Republicans, including 14 who identify as Catholic, crossed the aisle to join with every House Democrat, including 75 self-identified Catholics, in supporting the measure last month.  

Rep. Tom Emmer, R-Minn., chairman of the National Republican Congressional Committee, backed the measure. When running for Minnesota governor in 2010, Emmer opposed same-sex marriage and described marriage as the “union between one man and one woman.” He did not release a statement regarding his recent vote and did not respond to the Register’s request for comment.  

He is not the only politician to have changed his mind on the issue. The Defense of Marriage Act (DOMA), which defined marriage as between one man and one woman, passed Congress on a widely bipartisan basis in 1996. Among those who voted for it was then-Delaware Sen. Joe Biden. In 2006, Biden said in an interview that “marriage is between a man and a woman,” and in a 2008 vice-presidential debate with Sarah Palin, he said he opposed “redefining from a civil side what constitutes marriage.”  

However, by 2012, he said in an interview that he was “absolutely comfortable” with allowing same-sex couples to marry, and that comment reportedly pressured then-President Barack Obama to come out with a similar statement. The Biden White House released a statement of policy last month calling DOMA “an unconstitutional and discriminatory law” and saying the “Respect for Marriage” act would “strengthen civil rights and ensure that the promise of equality is not denied to families across the country.” 

Carl Trueman, a Christian theologian and professor at Grove City College in Pennsylvania, told the Register that there has been “a rather interesting silence from an awful lot of Republicans on the issue,” and “the impression is that they don’t want to upset either wing of their base on this” due to the shift in public opinion.  

He said religious-freedom concerns would be intensified with the legislation, as they have ever since the Obergefell decision, because “when you decide that belief in gay marriage is a point of social orthodoxy for being welcomed in polite society, then those who disagree with that position find themselves in a very difficult spot.” Regarding the Republicans who are changing their stance on the issue, he cautioned that “it’s really impossible to maintain any coherent form of conservatism and vote for gay marriage” because “once you start watering down the importance of the biological difference between men and women and how that connects to important social institutions such as marriage, you’ve really let the genie out of the bottle.”  

“I think you’re hard-pressed to find a society that has ever proved to be even modestly successful that doesn’t have some clear and coherent understanding of the family and some clear and coherent understanding of parents’ responsibilities towards children,” Trueman said.  “If that’s the case, then clearly the government does have an interest in how families are defined because the government has an interest in the well-being of society. Once you unleash this potentially anarchic understanding of marriage and therefore family, you’re really moving into very uncharted territory that I don’t think we fully know where this is going to lead.” 

 

Future of the Bill 

The future of the measure in the Senate is still uncertain. While some Republicans have stated their support for traditional marriage, many are opposing the bill simply because they see it as unlikely that the Supreme Court would revisit Obergefell.  

It is unclear when the bill will come up for a vote, as some Democrats tested positive for the coronavirus recently, causing a delay, and Republican support is still uncertain.  

“We are working real hard to get 10 Republican senators,” Senate Majority Leader Chuck Schumer, D-N.Y., told reporters last Tuesday. “Between that and the illnesses, we’re not there yet.” 

The Democrats would need 10 Republicans to cross the aisle and support the measure for a 60-vote, filibuster-proof majority. There are currently four Senate Republicans, Sens. Thom Tillis (North Carolina), Susan Collins (Maine), Lisa Murkowski (Alaska) and Rob Portman (Ohio), who have indicated support for the measure.  

A fifth Republican, Sen. Ron Johnson of Wisconsin, told reporters he saw “no reason to oppose” the bill, but has since gotten pushback from Wisconsin Family Values, which described the bill as “a direct threat to religious freedom.” Many Republicans have refused to comment on the bill until it is brought for a vote. 

Sen. Marco Rubio, R-Fla., told CNN that he believes the bill is a “stupid waste of time” and that “there is zero chance, below zero chance, that the Supreme Court or anyone is going to outlaw gay marriage in this country.” Sen. Jim Inhofe, R-Okla., told CNN that he saw the bill as “an attempt to distract from the Democrats’ failed agenda,” but added that his “views on marriage have not changed, and I would not support codifying same-sex marriage into law.”